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TESTIMONY OF PROFESSOR DAVID C. VLADECK

GEORGETOWN UNIVERSITY LAW CENTER

BEFORE THE SENATE JUDICIARY COMMITTEE

EXAMINING LIABILITY DURING THE COVID-19 PANDEMIC

INTRODUCTION

Like all Americans, I am anxious to re-open the economy and to get America

back on its feet. I applaud the Committee for dedicating its time and energy to

explore ways to facilitate that process. And I can only imagine how heavily that

burden weighs on your shoulders.

But as my testimony today makes clear, businesses that act responsibly are

already protected from liability. We do not need legislation to protect them. On the

other hand, immunizing companies from liability when they act unreasonably or

irresponsibly would be counterproductive and would impede the ability of states to

reopen their economies. After all, workers and consumers, not government

mandates, will reopen our economy. Until workers feel safe, they will stay away

from their workplaces, except for those workers who are forced to return to work as

a result of economic coercion. Until consumers feel safe, they too will be reluctant

to return to restaurants, retail stores, gyms, and even places of worship. And let’s

not forget that, so long as the virus continues to sicken Americans, our first

responders are especially vulnerable. Unreasonable or irresponsible actions by

employers or businesses risks the spread of Covid-19, thus adding to the crushing

burden that first responders face. They too will be the losers if Congress immunizes

risky or unreasonable behavior.

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The states, not the federal government, are taking the lead on reopening;

Congress should not take action that might impede state efforts by insulating from

sanction unreasonable or irresponsible conduct that might spread the virus. And

Congress should refrain from undermining how states choose to protect their

citizens, as states have done since our nation’s founding.

As far as I can tell, for Congress to bestow broad immunity from liability

would be unprecedented. It is also far from clear that the Constitution permits

Congress to simply wipe away state liability rules without enacting substantive

legislation imposing federal regulatory oversight or an alternative compensation

system, or both. As a matter of history, from our nation’s founding, liability rules

are the realm of the states, based on the common law. The touchstone of common

law torts has always been reasonableness: There is no liability so long as the entity

acts reasonably. On the other hand, when an entity acts unreasonably or

irresponsibly and causes harm that is foreseeable, the entity may be held liable. In

cases involving gross misconduct—e.g., speeding in an area with many pedestrians;

shooting a gun in the direction of a crowd—many states authorize punitive damages

on top of compensatory damages. It is important to understand, however, that the

line between unreasonable conduct and gross misconduct is murky, context-based,

and fact-dependent—differentiating between the two forms of liability is almost

invariably a question for a jury, and is not resolved prior to trial. And, of course,

the difference is utterly meaningless in terms of propagating the spread of the

virus; unreasonable acts spread the virus just as easily as reckless acts.

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Our liability system thus defends the reasonable and punishes the

unreasonable and irresponsible. It does so to ensure that wrongdoers bear the costs

they impose on others, and to deter others from engaging in similarly risky conduct.

Immunity does the opposite: Immunity rewards the unreasonable and irresponsible

at the expense of others, and immunity could punish reasonable businesses by

giving the unreasonable and irresponsible ones an advantage in the marketplace.

Positive law—by which I mean statutes and regulations—may also impose

liability. Throughout our history, however, the tort and regulatory systems have

operated in tandem. They place separate, albeit reinforcing, disciplines on the

market. When functioning well, a regulatory system prevents injury and ensures

that products on the market are safe for their intended uses. At the same time, the

tort system is vital because there are often gaps that our regulatory agencies cannot

fill, because of statutory limitations, scarce resources, or lack of expertise. In most

states, violations of statutory and regulatory requirements constitute negligence per

se—a basis for imposing liability. On the other hand, already under state law,

compliance with regulatory requirements is a defense to liability, and at times is

even an affirmative defense.

I lay out these basics as background to a number of points:

* Immunity is counterproductive. It licenses unreasonable and irresponsible

conduct that can spawn new cases of Covid-19, and thus signals to workers and

consumers that their safety is at risk. Reopening our economy requires that we

make clear that employers and businesses are taking reasonable safety precautions

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to stop the virus’s spread, and are following the guidance of expert public health

agencies to do so. Liability rules help ensure employers and businesses do just that.

* Providing employers and businesses the guidance they need to safely

reopen will do more to forestall litigation and to open up our economy than anything

else the federal government can do, short of finding a vaccine. Adhering to specific

and expert guidance on how to avoid propagation of the virus gives businesses a

strong regulatory compliance defense, and it signals to workers and consumers that

their employers and businesses are taking reasonable precautions to safeguard

their health.

* The preconditions that Congress has traditionally required for preemption

of state liability law are all absent here. In displacing state liability law, Congress

has relied on the following factors: a focus on a single industry (e.g., commercial

nuclear power); strict regulatory oversight by federal agencies (e.g., radioactive

wastes); reasonable fear of significant litigation that conflicts with or threatens to

impede federal goals (e.g., medical devices ); and often the necessity for a substitute

remedy (e.g., black lung). None of these factors are present here.

* Granting immunity, and thus nullifying state law, in the absence of positive

federal legislation, and in the absence of proof that mainly intrastate litigation

related to Covid-19 has a substantial effect on interstate conduct, likely violates the

Constitution. The unprecedented nature of this legislation guarantees that it will be

subject to constitutional challenge. For that reason, the uncertainty surrounding

the legislation’s constitutionality means that no business can count on the

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immunity nominally conferred by the legislation until the constitutional issue is

resolved.

* Beware of unintended consequences in writing legislation that displaces

some or all of state liability rules—rules that have a long history that is unique to

each state.

Immunity is Counter-Productive and Would Send the Wrong Signal

Workers and consumers, not government mandates, will reopen the economy.

But workers and consumers need to feel safe before they will be willing to venture

out. Workers and consumers need to trust that employers and businesses will act

reasonably to protect them from the virus, and will follow guidance on reopening

provided by expert state and federal agencies. With liability rules in place,

employers and business have real-world incentives to take the precautions

reasonably necessary to protect workers and consumers from infection—the risk

that failure to do so may lead to lawsuits, regulatory enforcement, or both. Keeping

liability rules in force is essential to build the confidence that workers and

consumers need to go back to work and to reopen our economy.

In contrast, immunizing employers and businesses strips away that

incentive. Immunity says to workers “You must return to work no matter how

unreasonable your employer is, or risk losing your job.” The message to consumers

is no more reassuring. It says “You’re on your own. Go out at your peril. And hope

that your grocery store, and wherever else you need to shop, is taking reasonable

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precautions,” even though you have no recourse if they’re not. Authorizing

employers and businesses to disregard safety norms by giving them immunity—

and, make no mistake, immunity protects only the non-compliant—will inevitably

make workers and consumers even more hesitant to go back to work or re-enter the

economy so long as this pandemic grips our nation.

Consider the kind of abuse that is likely to flow from immunity: A restaurant

directs its servers not to wear masks, doesn’t bother to monitor their health, and

doesn’t wipe down its tables with disinfectants—actions that are plainly risky but

may not be specified in the minimal or flexible guidance the restaurant has been

given by local health authorities. Three servers have symptoms of the virus but

keep on working; ultimately, the servers test positive for the virus. Suppose that

contact tracing shows that the restaurant was the vector for ten new cases of Covid-

19, including you and your spouse. But the restaurant is immune from liability. You

have no recourse. The restaurant may keep operating without making changes.

What would be the implications of that outcome? More new cases of the virus;

placing burdens on you and your spouse, your families, and the others infected and

their families; and threats to first responders who provide medical care to the sick.

That is too high a price to pay for immunity.

Consider another example. An employer insists that employees work despite

the employer’s failure to mitigate the risks of exposure. Employees who perceive the

risk might reasonably fear that complaints to the employer or regulators might

trigger job loss. As a result, infected employees might go to work, spreading the

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virus in the shop, and other employees become ill at work and return home to infect

their families. That scenario is not a hypothetical. Does it really make sense to give

this employer immunity from liability? The answer plainly is no.

Regulatory Compliance Protects Businesses From Liability

There are positive measures that the federal government should take that

would facilitate opening the economy in tandem with the retention of state liability

rules. The most important measure is to provide science-based, enforceable

guidelines and make sure the guidelines reach employers and businesses. Clear,

specific, and directive guidance promotes regulatory compliance, which is the best

way to shield employers and businesses from liability litigation, to reduce the

virus’s spread, and to speed the safe opening of the economy. Regulatory compliance

is a strong liability shield, if, but only if, the guidelines come from expert regulatory

bodies and specifies the measures that need to be taken. Adherence to federal

guidelines specific to containing the spread of the virus in factories, processing

plants, restaurants, retail stores, and schools would provide exactly the kind of

regulatory guidance that, if followed, would effectively shield employers and

businesses from liability. Every state recognizes regulatory compliance as a defense

to liability. See generally Geisfeld, Tort Law in the Age of Statutes, 99 Iowa L. Rev.

957, 1001-1005 (2014). Give employers and businesses clear guidance about what

norms are required to reopen, praise them if they follow the guidance, indeed,

encourage them to advertise that they are following the guidance, but hold them

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accountable if they fail to follow that guidance. Reward the compliant and punish

the scofflaws.

Federal and state agencies, including the Centers for Disease Control (CDC),

the Occupational Safety and Health Administration (OSHA), and the

Environmental Protection Agency (EPA), can and should issue detailed guidance.

Fighting this pandemic is for public health experts.

Unfortunately, these expert agencies have left the playing field. As has been

widely reported, CDC has not received White House clearance to publish officially

its detailed guidance for businesses to reopen, and recent reporting suggests that

the guidance has been shelved. As far as I can tell, OSHA has neither issued

guidance for companies to follow, nor has it brought any enforcement actions

against companies with rampant infection rates, even against those companies that

appear to have disregarded OSHA’s general duty clause, which provides that

employers “shall” provide employees a place of employment that is “free from

recognized hazards that are causing or likely to cause death or serious physical

harm.” 29 U.S.C. § 654. And the Environmental Protection Agency has announced

that it will curtail enforcing the environmental laws for the duration of the

pandemic. See EPA, COVID-19 Implications for EPA’s Enforcement and

Compliance Assurance Program, March 26, 2020.

To the extent that employers and businesses face a Covid-19 related liability

threat, the failure of federal government to provide employers and businesses

expert guidance on how to safeguard the health of workers and consumers that they

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can depend on is the greatest source of that threat. The federal government needs to

be at the vanguard to facilitate reopening, not on the sidelines. If Congress is

serious about liability protection, it should ensure that the federal government

steps up and provides the guidance that employers and businesses urgently need.

With guidance, existing state common-law standards—which protect reasonable,

responsible businesses—will provide those businesses with far stronger protections.

Providing Immunity Would Be Unprecedented

Congress has, from time to time, displaced state liability laws by enacting

statutes that preempt state laws, including liability laws and common law torts, but

has invariably substituted regulatory measures designed to protect the public.

Because preemption cuts against the historic understanding of federalism, the

Supreme Court has applied a presumption against preemption and construed

preemptive statutes narrowly. After all, the preemption of state laws represents “a

serious intrusion into state sovereignty.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 488

(1996) (plurality opinion); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (“in all

preemption cases, and particularly in those in which Congress has legislated . . . in

a field which the States have traditionally occupied, . . . we start with the

assumption that the historic powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress.”) (citations

omitted).

Congress has always been careful when it preempts state liability law, and

for good reason. Since the founding of the Republic, states have set their own

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liability rules. And that makes sense. Although liability rules are based on the

common law, they are not homogenous—there are significant variations among the

states. For these reasons, to the extent that immunities—total protection against

liability—are needed to help open up our economy (and I disagree that immunities

will accomplish that goal) that is a decision that the states can and will make if

necessary. There is no need for Congress to claim the role of decider here.

In every instance in which Congress has preempted state liability laws, it has

done so to enhance public protections, not weaken them, which would be the goal

and result of immunity legislation. In contrast, statutes that preempt state liability

law are based on one or more of several factors—none of which is present here.

First, federal preemption is invariably laser-focused on discrete economic sectors

that are subject to pervasive federal oversight and regulation, such as the life-

saving medical devices at issue in Medtronic, or the development of commercial

nuclear power, see Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59

(1978). The grant of immunity contemplated here is not sector or product-specific.

Second, the courts have held that federal law may preempt state liability

rules to ensure that they do not interfere with the achievement of important federal

goals. Express preemption, contemplated in immunity legislation, takes place only

when federal statutory goals or regulatory requirements conflict with state law,

including common law. See, e.g., Medtronic, supra (addressing the Medical Device

Amendments to the Food, Drug and Cosmetic Act); Fidelity Fed. Sav. & Loan Ass’n

v. de la Cuesta, 458 U.S. 141, 153 (1982) (holding that a state law on due-on-sale

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requirements conflicted with federal law and thus was preempted). Eliminating

state liability rules furthers no discernable federal interest other than the

aspiration that immunity might speed up the reopening of our economy. But as the

Supreme Court recently drove home, “Invoking some brooding federal interest or

appeal to a judicial policy preference should never be enough to win preemption of

state law; a litigant must point to ‘a constitutional text or statute’ that does the

displacing or conflicts with state law.” Virginia Uranium, Inc. v. Warren, 139 S. Ct.

1893, 1901 (2019).

Here, no underlying federal statute conflicts with state liability laws. The

preemption bargain is the exchange of protective ex ante federal regulation for ex

post state liability remedies. But in contrast to cases like Medtronic, here there is

no ongoing federal regulatory effort to provide safeguards for workers and

consumers against the risks of the virus, and immunity would significantly weaken

the ability of states to protect their citizens. It has been the states, not the federal

government, on the front line fighting the virus. To put it charitably, it would be

anomalous for Congress to arrogate to itself the right to wipe away state law when

it is the states, not the federal government, addressing the direct threats from the

virus every hour of every day.

Nor is the risk of litigation sufficient to justify displacing state liability laws.

To be sure, there has been some satellite litigation involving Covid-19 over matters

regarding insurance coverage and price gouging. A few cases have been brought by

workers to force employers to provide more effective protection. And a few similar

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cases have been brought by individuals imprisoned or in detention. Those are not

the cases that concern Congress. Congress instead worries about the possibility that

a tsunami of tort cases against businesses struggling to reopen might be on the

horizon. Like many worries, this one is unlikely to materialize, and even though

we’ve been in the grip of the virus for months, it has yet to rear its ugly head.

One reason is that causation—the core allegation in any tort action—will be

devilishly difficult, if not impossible, to make in most cases. The unprecedented

transmissibility of this virus will generally make causation guesswork at best, and

guesswork is insufficient for pleading in a tort case. Lawyers bring contingency fee

cases only when they have a reasonable chance of recovering the costs of the

litigation and the value of the time they expend on it. Covid-19 cases would be a

very risky bet at best. Another reason not to fear a tsunami is that in the few cases

where pleading causation is plausible—mainly cases in which large numbers of

employees have been sickened in a plant or factory—questions of liability will often

be resolved by state workers’ compensation systems, not by the courts.

To be sure, there will be some cases that neither founder on causation nor are

subject to workers’ compensation. The restaurant example discussed above might

well be a viable case. And it is cases like that one that should go to court, lest the

restaurant owner continues to engage in unsafe practices that spread the virus. Or

consider nursing home residents who contracted the virus because their institution

failed to take basic steps to stop the virus’s spread. Shouldn’t they have their day in

court? If employers or businesses take unreasonable risks and jeopardize public

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health, immunizing the bad actor shifts the costs of the harm to the injured,

elevates the risks to the public, and adds to the already crushing burden and risk to

our first responders.

Last, but hardly least, when Congress preempts state liability rules it often

provides a substitute system of compensation. The Price-Anderson Act, 42 U.S.C. §

2210, limited the liability of our commercial nuclear power industry, but preserved

the right to sue; the September 11th Victims Compensation Fund, 49 U.S.C. § 40104,

also gave victims an option to sue and it is still helping the first responders; and the

Radiation Exposure Compensation Act, 42 U.S.C. § 2200 note, is still providing

compensation to those injured by our nation’s atmospheric testing of nuclear

weapons. These are just a few examples of instances where the federal government

stepped in to compensate those injured or the families of those whose death was

caused by forces beyond their control. Indeed, there is already a statute in place

designed to compensate people injured by drugs or vaccines that are administered

to treat Covid-19 patients, but had unexpected side effects and cause injury or

death.1

Before the Senate considers an immunity bill, and I urge it not to do so, it

should first ensure that strong, enforceable federal protection standards are in

place, through guidelines and enforcement actions. And it should provide an

1 The Countermeasures Injury Compensation Program is authorized by the Public

Readiness and Emergency Preparedness Act, and its purpose is to compensate those

injured by “countermeasures”—vaccines, medications, and devices, and other items

recommended to diagnose, prevent or treat a declared pandemic. 42 U.S.C. § 247-d.

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alternative compensation system to ensure that the burden of this pandemic is not

borne by the doctors, nurses, orderlies, other first responders, workers, consumers

and family members who, under current law, could have obtained redress in courts.

Denying them any remedy at all would be fundamentally unfair, especially since

immunity legislation will almost certainly contribute to the virus’s spread. If

Congress decides that it is necessary for the greater good of the nation to close the

courthouse door to the injured or the dependents of those who lost their lives, then

Congress should ensure that they do not bear losses caused by employers and

businesses who acted unreasonably or irresponsibly. The nation should bear those

losses. Anything less would be unjust.

Immunity Legislation Likely Exceeds Congress’s

Constitutional Authority

The constitutional issue presented by this proposal is whether Congress may

bestow a broad immunity from liability for purely private suits with no connection

to an existing or newly created federal program that safeguards the public from the

virus. As I have said, in that respect, this legislation appears to be unprecedented.

Because Congress can only legislate based on its enumerated powers, see, e.g.,

United States v. Comstock, 560 U.S. 126, 133-34 (2010), the only provision of the

Constitution that could conceivably justify this proposed legislation is the Interstate

Commerce Clause. U.S. Const., Art. I, § 8, cl. 3. Even with that footing, it is far from

clear that legislation immunizing businesses for Covid-19 related liability cases

would survive constitutional review, which would be inevitable. And until the

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constitutional issue is resolved, a grant of immunity would be conditional; there is

no guarantee that immunity legislation will pass judicial muster.

The heady days when Congress could justify virtually any legislation under

the Commerce Clause are gone. The Supreme Court’s more recent rulings explain

that, while Congress’s power under the Commerce Clause is broad, it is far from

boundless. See, e.g., Nat’l Fdn. of Ind. Business v. Sebelius; 567 U.S. 519 (2012);

United States v. Lopez, 514 U.S. 549 (1995). In Sebelius, for instance, the Court

rejected the government’s claim that the independent mandate set out in the

Affordable Care Act could be justified under the Commerce Clause, notwithstanding

the mandate’s predictable and direct impact on insurance markets. 567 U.S. at 548.

And in Lopez, the Court held that the Commerce Clause could not support a ban on

guns near schools and playgrounds, even though gun sales often involve interstate

transactions. 514 U.S. at 552-59; see also United States v. Morrison, 529 U.S. 598,

614, 618 (2000) (holding that the regulation of punishment—there, violence against

women—“is not directed at the instrumentalities, channels, or goods involved in

interstate commerce [and] has always been the province of the States”).

Congress’s burden of justification is not trivial. State sovereignty reflects that

our Constitution presupposes shared power between the federal government and

the states. As the Court drove home in Bond v. United States, 564 U.S. 211, 222

(2011), much of governmental power “is controlled by 50 different States instead of

one national sovereign, the facets of governing that touch on citizens’ daily lives are

normally administered by smaller governments closer to the governed. The Framers

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thus ensured that powers which ‘in the ordinary course of affairs, concern the lives,

liberties, and properties of the people’ were held by governments more local and

more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293

(J. Madison).” Since our nation’s founding, liability rules have generally been set by

state and local governments, which are “closer to the governed” and “more

accountable” to the people.

Much of the Court’s reasoning in the modern federalism cases strongly

suggests that immunity legislation, untethered to an ongoing federal regulatory

program, could not be justified under the Commerce Clause. For one thing, these

cases drive home that Congress must demonstrate that the “activities” subject to

federal legislation must “have a substantial effect on interstate commerce.” See, e.g.,

NFIB, 567 U.S. at 549. But at this point, however, there is scant evidence,

empirical or even anecdotal—either from before states imposed stay-at-home orders

or from states that have remained open or have reopened—that litigation by

individuals over the spread of Covid-19 is having any effect at all, let alone the

substantial effect on commerce the Constitution requires.

Even more problematic is the fact that, even if a substantial number of cases

related to Covid-19 were filed, many, perhaps most, would almost certainly be

intrastate disputes that have no appreciable effect on interstate commerce, let alone

a substantial effect.

The absence of real evidence exposes yet another pitfall. The Interstate

Commerce Clause gives Congress the power to “regulate Commerce.” As the NFIB

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Court points out, the “power to regulate commerce presupposes the existence of

commercial activity to be regulated.” Id. at 550 (emphasis in original). In other

words, Congress may not legislate simply “because of prophesied future activity.”

NFIB, at 557. To be sure, “Congress can anticipate the effects on commerce of an

economic activity,” id., but the Court has “never permitted Congress to anticipate

that activity itself in order to regulate individuals not currently engaged in

commerce.” Id. Again, there is no evidence that Covid-19 related cases are having

any impact on interstate commerce. For that reason, this proposal has the same

flaw that led the Court to reject the government’s argument in NFIB that the

individual mandate could be grounded in the Commerce Clause—namely, the

factual predicate for immunity legislation would be based on the prophecy that the

tsunami Congress fears will materialize. Particularly given the significant Tenth

Amendment concerns, “prophesy” is not a sound footing for legislation based on the

Commerce Clause. See New York v. United States, 505 U.S. 144, 156-57 (1992).

Perhaps ironically, one of the preexisting statutes that affords immunity

highlights the second constitutional problem with the proposal, namely that it is

untethered to any extant or newly-initiated federal regulatory program. The

Defense Production Act, 50 U.S.C. § 4557, provides liability protection for claims

arising from a business’s compliance with government orders under the Act. The

immunity provision is part of a broader statute that permits claims for declaratory

and injunctive relief. But the statute provides immunity only for action taken at

the behest of the federal government; it is not a broad, all-purpose immunity for

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conduct that arises in other contexts. See In re Agent Orange Prod. Liab. Litig., 597

F. Supp. 740, 844-45 (E.D.N.Y. 1984). The same is true for the common law

immunity that extends to government contractors. See Boyle v. United Technologies

Corp., 487 U.S. 500 (1988). Ad hoc legislation that simply wipes away state law

without advancing the goals of any existing or even newly created federal program

falls well outside the scope of Commerce Clause power, and the extinguishing of

state law claims, with no federal substitute, likely violates the Due Process Clause

as well.2

As this discussion makes clear, it is far from certain that immunity

legislation would survive constitutional review. It would be unprecedented, it

would be based on predictions about an activity that may never materialize, it

would regulate activities that are predominantly intrastate, it would be an outlier

because it does not further any federal statutory goal and extinguishes state-

created rights, and it would be antagonistic to the sovereignty of every state and

thus at odds with the Tenth Amendment. Each of these factors will weigh heavily

against the legislation in the constitutional analysis.

2 It does not appear that the Supreme Court has ever directly addressed the Due

Process question, which is likely novel. But the Supreme Court has strongly suggested that

eliminating state liability law without any quid pro quo would violate Due Process. Duke

Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88 (1979) (upholding the

constitutionality of the Price-Anderson Act). That is exactly what immunity legislation

would do.

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The Risk of Unintended Consequences

The law of unintended consequences will loom large over any effort to draft

immunity legislation. Conferring immunity would require Congress to define with

exacting care the parameters of immunity and decide whether to substitute a

government compensation scheme in lieu of state remedies. That task will be

extremely difficult because, as I have said, a federal law granting broad, non-sector

specific, immunity from state tort and statutory law is unprecedented.

Congress will thus have to answer many questions on an entirely blank slate.

One vexing question will be what is the scope of the immunity? Common law tort

claims? Torts alleging negligence per se? State statutory claims, including those

embedded in state workers’ compensation laws? Federal statutory claims? Will

federal worker protection laws such as the Occupational Safety and Health Act be

nullified as well? Will the immunity apply only to personal injury claims? Will the

immunity bar suits even against employers or businesses who irresponsibly expose

their employees to the virus, in those instances where workers’ compensation laws

do not apply? Suppose a business has to shut down after a customer came in who

knew that he or she was infected with the virus. Is the company barred from suing

that individual for economic loss? And what about illnesses or contamination

caused by pollution or waste emissions because EPA announced in March that

businesses did not have to monitor or report their pollution if the pandemic made it

difficult to do so?

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We know from the last economic downturn that small businesses are

especially vulnerable. What about claims against insurers who wrongfully deny

coverage; would those claims be barred as well? What about economic and

competitive harm claims—price gouging, collusion, or predatory conduct—that may

be rife with so many businesses teetering on the edge of bankruptcy? Would those

anti-competitive practices be immunized as well?

What about tort claims against manufacturers who engage in deceptive or

fraudulent conduct related to Covid-19, such as selling quack medicines, dietary

supplements, or devices? Would an immunity shield apply to scam artists? Would

the immunity wipe away Covid-19 related cases brought under state unfair and

deceptive acts and practices laws?

And what about civil rights claims? Prisons and detention facilities are the

sites of some of the nation’s largest outbreaks, and many are privately owned and

operated. Would detainees be barred from seeking injunctions requiring better

protection against the virus or essential medical care? Could detainees bring

constitutional tort claims, and if not, what is the justification for eradicating those

claims? And would the legislation wipe out claims already filed, or claims ready to

be filed based on ongoing conduct? How long will the immunity be in place? Will it

sunset at a given time? If not, will there be a statutory trigger that would require

Congress to renew it or repeal it, or would it be perpetual?

I could keep on going, but you see my point. Drafting legislation that

immunizes conduct that has given rise to liability for decades if not centuries will be

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difficult, and there will be no end to unforeseen pitfalls that will ultimately emerge.

The better path is to abandon efforts to give immunity to those who act

unreasonably, and instead to require our expert public health agencies to provide

detailed, expert guidance to businesses on how to open safely and responsibly, assist

states and localities to work with businesses on safe business practices, and find

positive ways to support the reopening of our economy.